from the good-luck-with-that dept

Last summer, our writer Tim Cushing put together something of an omnibus post of stupid DMCA takedown requests, none of which probably deserved their own unique post. One of the individuals he highlighted later went on something of a wacky defamatory crusade against Tim, posting blatantly false information about him, and claiming that Techdirt is actually owned by some telecommunications company I'd never even heard of, that is also a patent troll, or something. But now another entity in that very same post has also decided it's upset about the post, and has taken a slightly different strategy.

The company in question is Andromedical, makers of the creatively named "Andropenis," which is (you guessed it) a penis pump. The company appears to do two things aggressively: push a highly questionable "study" claiming its device is effective... and issue questionable takedown demands. Tim was mocking the fact that Andromedical was asking Google to take down results from the competing Bing search engine, but also the fact that it appeared to be promotional images of the product. So, why are we subject to a takedown notice?

BRING ON THE KITCHEN SINK OF LEGAL THREATS!

In what is announced via email as a "DMCA notice," (and sent to a personal email address of mine, rather than our publicly listed DMCA agent email address) is apparently a combination notice of all sorts of things we didn't actually do:

I write on behalf of the Legal Department of Andromedical, S.L. Company, as an Intellectual Property abuse report to your company. This email is part of a Counterfeit Notification to INTERPOL and must be considered as an official Cease and Desist, Digital Millenium Copyright Act (DMCA) Notification.
We have detected that your website is using our trademark Andropenis® and our copyrighted images without being licensed to do so. It is illegal to use Intellectual Property (IP) without license in your website, whether or not you are selling the actual device associated to our copyrighted properties. Thus, you are infringing the law by using trademarked and copyrighted properties of Andropenis® without license and without IP rights. Please, proceed to delete immediately the following pages and the images in them from your website:

Yeah, so, first of all, it's a DMCA notice, which covers copyright and not trademark. The fact that we don't have a license is meaningless either way. First of all, we can use the ridiculous Andromedical or Andropenis name as much as we want without violating the trademark, because we're using it in a manner that is clearly descriptive of the product, and not in commerce. It's also not being used in a manner to confuse consumers or dilute the brand. So, just the fact that it suggests merely mentioning the name without a license is infringing is ludicrous and wrong. You're doing trademark law badly.

On the copyright question, we did post an image of some of Andromedical's own promotional images, but in a manner that was clearly fair use. It was part of our news article, explaining Andromedical's abusive DMCA practices, and as part of showing the kinds of images it was taking down, we showed a few thumbnails of those images. This is obviously fair use, so Andromedical can take its DMCA notice and pump it.

Then we get to the whole "Counterfeit Notice to INTERPOL" -- to which I can only say... huh? There's no counterfeiting. We're not selling any products in our post -- legitimate or counterfeit. We're just posting a story about the company, which is perfectly legal to do.

Nevertheless, the company insists that if we don't take down our article, it will follow through with a list of increasingly aggressive/ridiculous tactics:

You have one week after the reception of this email to delete any and all images of Andromedical and/or Andropenis® products, any and all Andromedical and/or Andropenis® trademarks, and any and all Andromedical and/or Andropenis® information and references from your websites. Legal actions against your company will be stopped if these actions are undertaken. If you fail to do so, our Legal Department will:

Contact your web hosting service to have your website removed, as you are infringing their Terms of Service by using their server space for unlawful purposes.

Contact INTERPOL, as your company is committing an international crime by trafficking in illicit goods and counterfeiting. (http://www.interpol.int/Crime-areas/Trafficking-in-illicit-goods-and-counterfeiting/Trafficking-in-illicit-goods-and-counterfeiting).

Wait, we're "committing an international crime by trafficking in illicit goods and counterfeiting" because we posted a story mocking your stupid DMCA takedown requests... and your response is to send an even stupider and more ridiculous takedown demand? Yeah, that's not very smart. You're also lying, which may be an issue for you given that the DMCA forbids making false statements in DMCA takedowns.

And, just to be clear: we're not selling any stupid penis pumps, counterfeit or not. Did you miss that simple fact? I imagine Interpol might wonder why you're wasting their time making false reports.

Next up, the email lists out the various trademarks in different jurisdictions that the company has -- all of which is totally meaningless and unimportant because writing about your company is not violating your trademark in any way, shape or form. That's not how trademark works.

And then the closing:

Andromedical S.L has not signed a valid license contract in this seller’s favor to use the trademarks of Andropenis® or its copyright. The names referred and its images pertain, only and exclusively, to Andromedical S.L.

I have a good faith belief that use of the copyrighted materials described above on the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law.

I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Sincerely,
Eduardo Gomez de Diego

Yeah, that's great. Except, again, we're not selling anything, and we're not violating your trademark or your copyright. Your "good faith belief" is either not in good faith at all, or just wrong. Our use is clearly authorized by the law.

Finally, note that the opening of the email threat said that it was coming from "the Legal Department of Andromedical." So, that would imply that our friend Eduardo Gomez de Diego is a lawyer, no? So, then, why does he show up as a doctor stumping for an Andropenis penis pump? And the author of the "study" that claims that Andromedical's penis pump actually "works"?

In summary, I'd argue that Eduardo's legal claims are about as strong as his scientific and medical claims.

from the what's-wrong-with-a-court-order? dept

It's not just the City of London Police demanding that websites be taken offline without any due process. It appears that the US Food & Drug Administration (FDA) is getting in on the game as well. The Wall Street Journal recently published a detailed article about how angry the FDA is with ICANN (there's also a corresponding blog post which may not face the same paywall restrictions) for not simply killing domains that the FDA deems "rogue pharmacies." That's not to say that there aren't reasonable concerns about rogue pharmacies. There are clearly some concerns about those sites, but it seems like there are better ways to deal with those than just barging in and saying that ICANN and registrars need to take down sites based solely on their say so.

In July, the FDA teamed with Interpol and dozens of countries to try to shut down more than 1,300 websites suspected of selling drugs without a prescription. Officials sent a list of all the websites, carrying names such as buyoxycontinonline.com and approvedonlinepharmacy.net, to the Chinese company that registered them. The company replied with a request for a court order and then sent a terse follow-up email: “It is not possible for us to take action.”

In frustration, officials turned to the Internet’s central administrator, an organization called the Internet Corp. for Assigned Names and Numbers, or Icann. Its contract with the registrar, BizCN.com, requires the company to investigate reports of illegal behavior.

But here's the thing. Everyone in the articles (including the reporters) seem to take it as perfectly reasonable that ICANN and/or these registrars should have just taken down these sites. No one points out that BizCN seemed to respond properly by asking for a court order. ICANN isn't in the business of censorship. It shouldn't be the one to determine if a site is an illegal pharmacy or not. There's a reason why we have due process and courts to adjudicate decisions like that. Putting the entire burden on registrars and/or ICANN to act as internet cops, ready to take down sites at a notification's notice seems tremendously problematic.

It's a recipe for censorship, stifling free speech and hindering innovation. And yet, that's what the FDA and others want:

Because of its central role, regulators and law-enforcement agencies around the world say Icann could be crucial to their crackdown on illicit Internet operators of all kinds.

Already, just in the online pharmacy space, we've seen how certain pharmaceutical companies like to conflate the small number of truly "rogue" pharmacies that sell either counterfeit drugs or real drugs without proper procedures, with perfectly safe and legal Canadian pharmacies that many Americans rely on for cheaper drugs. The big pharmaceutical companies would like to shut down that competition, even as American politicians have explored expanding the ability of US citizens to get their drugs from such pharmacies. And that's why it's reasonable to ask for an actual court order before taking down sites -- rather than just assuming that some bureaucrat at the FDA can accurately determine which sites are "good" and which are "bad," and then demand that registrars or ICANN automatically take action.

from the alternative-to-the-special-301 dept

We've written plenty about the absolutely ridiculous Special 301 Report put out each year by the USTR. It's a list that the US uses to name and shame countries that it considers "naughty" when it comes to not passing intellectual property laws that the US likes. Of course, there is no actual methodology behind the list. Basically, various industry groups (i.e., RIAA, MPAA, PHRMA etc.) send in their thoughts about which countries they don't like, and the USTR magically takes their complaints and produces the list. This leads to bizarre things like naming Canada one of the worst of the worst, despite having stricter copyright laws than the US already.

Consumers International has decided that there's no reason that the USTR gets to have all the fun, so it's been releasing its own IP Watchlist ranking countries based on how pro- or anti-consumer local IP laws. In other words, Consumer International judges IP laws around the globe based on IP's actual purpose: to benefit the public. The actual report (pdf and embedded below) is a good read.

The US actually does fairly well. We're helped along by the fact that we actually have things like "fair use" in the law. The UK, however, comes in near the bottom. The report also highlights the ridiculousness of pushing stronger enforcement in some of the poorest countries in the world:

Malawi is a politically-troubled, least-developed country where
more than half of the population lives below the international
poverty line of $1.25 per day. One would have thought that
IP enforcement should take a back seat in such a country, in
favour of measures designed to ensure the satisfaction of the
population’s basic needs of food, water, clothing, shelter, and
medical care.

Yet Malawi was one of four poor countries in which Interpol
chose to conduct an anti-counterfeiting campaign in 2009, and in which the local police often join IP-holder organisations
in conducting copyright raids against local traders. Is this noholds-barred, developed-country model of IP protection and
enforcement truly the most appropriate model for countries
like Malawi?

It's worth noting, by the way, that the top three countries on Consumer International's list -- Israel, Indonesia and India -- were also on the USTR's Special 301 "Priority Watch List" as having the worst IP regimes last year. But, as Consumer International shows, they actually have the best IP regimes when it comes to serving the needs of the public. That seems to show just how ridiculous the USTR's Special 301 list really is.